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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

IN RE: DIET DRUGS §

(PHENTERMINE, FENFLURAMINE, §

DEXFENFLURAMINE) PRODUCTS § MDL DOCKET NO. 1203

LIABILITY LITIGATION §

 §

§

THIS DOCUMENT RELATES TO: §

§

PEGGY MARTINEZ, ET AL. § MDL # 02-0144

v. §

AMERICAN HOME PRODUCTS §

CORPORATION, ET AL §

§

MARILYN MELDER § MDL # 02-20142

v. §

AMERICAN HOME PRODUCTS §

CORPORATION, ET AL. §

 §

WYETH’S REPLY TO PLAINTIFFS’ RESPONSE TO WYETH’S MOTION TO

STRIKE PLAINTIFFS MARILYN MELDER’S AND PEGGY MARTINEZ’S

EXPERT WITNESSES AND TO BAR PLAINTIFF TEFFERNY PEREZ FROM

DESIGNATING AN EXPERT

Defendant Wyeth respectfully submits the following in reply to plaintiffs’

Response to Wyeth’s Motion to Strike Plaintiffs Marilyn Melder’s and Peggy Martinez’s

Expert Witnesses and to bar Plaintiff Tefferny Perez from Designating an Expert

(hereinafter “Motion to Strike” and “Response”):

Plaintiffs have submitted, over a month late, their opposition to Wyeth’s motion

to strike their expert witnesses for failure to comply with this Court’s scheduling orders.

As an initial matter, the Court should decline to consider plaintiffs’ tardy Response and

grant as unopposed Wyeth’s Motion to Strike. Even if the Court elects to consider the

Response, Wyeth’s Motion to Strike should be granted because plaintiffs Martinez and

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Melder still have not provided adequate Rule 26 reports, and all plaintiffs’ attempts to

cure their deficiencies have come too late.

A. Wyeth’s Motion to Strike Should be Granted as Unopposed.

Pursuant to Local Rule of Civil Procedure 7.1(c), a motion may be granted as

unopposed if no timely opposition is filed. Also pursuant to Local Rule 7.1 (c), a party

opposing a motion must submit an opposition brief within fourteen days of the filing of

the motion. Wyeth’s Motion to Strike was filed on December 9, 2003, and plaintiffs did

not file any response until two months later, on February 9, 2004.1 Plaintiffs offer no

explanation for their continuing failure to comply with this Court’s deadlines, and no

argument as to why their untimely opposition should be considered. This Court should

accordingly decline to consider plaintiffs’ Response and grant Wyeth’s Motion to Strike

as unopposed.2

B. Wyeth’s Motion to Strike Should be Granted Even if the Court Elects to

Consider Plaintiffs’ Untimely Response.

Wyeth explained in its Motion to Strike that, under this Court’s decision in

Sheppard v. Glock, Inc., 176 F.R.D. 471 (E.D. Penn. 1997) (J. Bartle), all plaintiffs’

experts should be excluded due to plaintiffs’ failure to produce timely Rule 26-compliant

expert reports. Plaintiffs respond by arguing that their experts should not be excluded

because they “quickly resolved” the deficiencies in their expert reports, and that

Sheppard does not apply under the facts of this case. As explained below, these

 

1

 On January 23, 2004, Wyeth sent a letter to Special Master Miller requesting that its Motion to Strike be

granted as unopposed because plaintiffs had filed no timely response. See Exhibit 1.

2

 As noted, plaintiffs have offered no argument in support of the consideration of their untimely Response.

If they did make such an argument, plaintiffs would have to establish that their failure to file a timely

opposition was the result of excusable neglect. See, e.g., Fidelity Fed. Sav. & Loan Ass’n v. Felicetti, 148

F.R.D. 532, 533 (E.D. Pa. 1993) (“the court may exercise its discretion to accept motion papers filed

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arguments are demonstrably false, and Wyeth’s motion to strike should accordingly be

granted.

1. Plaintiffs did not “quickly resolve” the deficiencies in their expert reports.

Plaintiffs claim that Wyeth’s Motion to Strike “is moot and is wasteful of this

Honorable Court’s time, as all issues were quickly resolved.” Response at 3. However,

plaintiffs Martinez and Melder have still not resolved the deficiencies in their expert

reports, and no plaintiff “quickly” resolved any issue. Indeed, Martinez still has not even

attempted to cure the deficiencies in her report, Melder did not produce her (still

deficient) supplemental report until January 30, 2004, and Perez did not produce any

designation or report until that date.3

 Thus even if all three plaintiffs had cured the

deficiencies in their reports on January 30 (which Melder and Martinez did not),

exclusion of their experts would still be warranted because their attempts at compliance

have come too late.

As Wyeth explained in its Memorandum, Martinez’s expert report is deficient

because it does not contain the basic information (like the expert’s curriculum vitae, fee,

previous publications, etc.) required by F.R.C.P. 26, or an opinion that Wyeth’s product

caused plaintiff’s alleged injuries. See Memorandum at 3-4. Martinez has not produced

any supplemental report or otherwise attempted to cure those deficiencies.

Melder’s original expert report was deficient because, although it did contain the

basic background information required by Rule 26, it did not include any opinion on

causation. See id. Melder’s expert, Dr. Lasala, has attempted to cure this deficiency with

 

outside the established time period where such failure was the result of excusable neglect”). There is no

evidence of excusable neglect here.

3

 As Wyeth explained in its Memorandum in Support of Motion to Strike (“Memorandum”), plaintiffs’

expert reports were originally due in November of 2002. See Memorandum at 2. It was only through

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the following statement in his supplemental report: “[i]t is also my opinion that the aortic

regurgitation measured by echocardiogram on Ms. Melder in January 1998 could be

secondary to anorexic drugs.” See Response Exhibit 2 at 2 (emphasis added). This

apparent attempt at a causation opinion is inadequate because it is settled law in

Louisiana,4

 as elsewhere, that causation must be proved by a preponderance of the

evidence. See Hutchinson v. Shah, 648 So.2d 451, 452 (La. App. 1st Cir. 1994) (“[a]

plaintiff in a tort action must prove every essential element of his case, including medical

causation, by a preponderance of the evidence”) (citations omitted); see also Kelly v.

West Cash & Carry Building Materials Store, 743 So.2d 743, 759 (La. App. 4th Cir.

1999) (“[i]t takes more than the existence of a mere possibility to prove a fact by the

preponderance of the evidence”). Dr. Lasala’s opinion that anorexic drugs could have

caused Melder’s alleged injuries is accordingly insufficient.

When Wyeth filed its Motion to Strike, Perez had designated no expert, and

produced no expert report. See Memorandum at 3-4. She submitted a “supplemental”

report by Dr. Lasala on January 30, 2004. This report does contain a causation opinion,

and, although it does not include the background information required by Rule 26, Wyeth

is aware of this information about Dr. Lasala through Martinez’s report. However, it

should be noted that Wyeth did not receive any of this information, or indeed even

become aware of the identity of Perez’s expert, until four months after the designation

and report were due. See Memorandum at 2 (noting that plaintiffs’ expert reports were

due September 30, 2003).

 

stipulation of the parties and order of Special Master Miller that plaintiffs were granted an extension until

September 30, 2003. Id. Plaintiffs have thus had well over a year to prepare adequate expert reports. 4

 These cases were both filed in Louisiana.

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Thus, even in light of the fact that Perez has finally produced a Rule 26-compliant

report (and even if Martinez and Melder had cured the deficiencies in their reports),

Wyeth’s Motion to Strike should still be granted due to plaintiffs’ failure to timely submit

Rule 26 compliant expert reports. In Sheppard, Judge Bartle found that the plaintiffs’

experts were properly stricken for their failure to submit timely expert reports even

though the plaintiffs had produced a tardy expert report:

Plaintiffs’ counsel counters that he negated any prejudice by

identifying all of plaintiffs’ experts on March 31, and providing

plaintiffs’ liability expert report on April 8, 1997. We are not

convinced. Eventual production is not the same as timely

production. [Inter alia,] defendant’s ability to have their own

liability expert present a cogent report by March 31 was negated,

not merely prejudiced, by the untimely actions of plaintiffs’

attorney.

Sheppard, 176 F.R.D. at 474 (emphasis added). The plaintiffs in Sheppard produced

their expert report a little over a month after it was due. See id. Here, plaintiffs finally

produced their supplemental expert reports four months after they were due. And, as in

Sheppard, Wyeth’s ability to timely prepare its own expert reports has been negated by

plaintiffs’ dilatoriness. Thus, as in Sheppard, exclusion of plaintiffs’ experts would be

warranted even if, by submitting their new reports, each plaintiff had finally produced an

adequate expert report.

2. Sheppard mandates exclusion of plaintiffs’ experts.

Plaintiffs Martinez and Melder argue that Sheppard is inapplicable to the facts of

this case because they filed timely (though deficient) expert reports. See Response at 1-2

& 5. However, Martinez and Melder concede that they did not file their expert reports

until October 22, 2003, see Response at 1 & 5, when the (previously extended) deadline

for submission of their reports was September 30, 2003, see Memorandum at 2 and

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Exhibit 2 thereto. Plaintiffs’ only explanation as to how this constitutes timely

production is their unsupported claim that the reports were produced over three weeks

late “upon agreement between Rebecca M. Urrutia, for plaintiffs, and Keri L. Howe, for

Wyeth, as to the date for submission.” Response at 1. Plaintiffs have offered no

documentation for this alleged agreement, and its existence is belied by an October 14,

2003 letter from Ms. Howe to Ms. Urrutia, in which Ms. Howe noted the tardiness of the

reports and requested that plaintiffs “please produce them immediately as we cannot

prepare our own reports until you do so.” See Memorandum Exhibit 3. The day after

Ms. Howe sent the October 14th letter, the Special Master's office contacted Arnold &

Porter with respect to these cases and suggested that Ms. Howe contact Ms. Urrutia to

inquire about the production of plaintiffs' delinquent reports. In accordance with this

suggestion, Ms. Howe contacted Ms. Urrutia by telephone, which is when Ms. Urrutia

informed Ms. Howe that plaintiffs would produce their reports by October 23, 2003.

Ms. Urrutia's statement that she would produce plaintiffs reports on October 23, 2003 --

well beyond the deadline and only after being contacted by Ms. Howe at the suggestion

of the Special Master's office -- in no way constitutes an "agreement" by Wyeth or a

waiver of any argument regarding plaintiffs' failure to comply with Special Master

Miller's scheduling order. Moreover, even if Wyeth had agreed to overlook the

untimeliness of plaintiffs' reports, which it did not, it by no means agreed to accept expert

reports that, like plaintiffs', utterly failed to comply with the requirements of Rule 26.

Plaintiffs also argue that exclusion is not warranted under Sheppard because

Wyeth has not been prejudiced. See, e.g., Response, at 2. However, as Wyeth explained

in its Memorandum, plaintiffs’ failure to abide by the Court’s deadlines has prejudiced

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Wyeth for precisely the reasons this Court found that the plaintiffs’ failure to timely

submit an expert report prejudiced the defendant in Sheppard. See Memorandum at 8.

Among other things, Wyeth noted that it had been prejudiced by being forced to

undertake the expense of filing its Motion to Strike. This prejudice has been

compounded by plaintiffs’ Response, which has forced Wyeth to undertake the expense

of drafting and filing yet another brief to try to force plaintiffs to comply with the Court’s

orders and plaintiffs’ obligations under the Federal Rules. As noted, this Court has

previously found that “eventual production” does not negate the prejudice caused by

dilatory conduct like plaintiffs’ here. Sheppard, 176 F.R.D. at 474.

Finally, plaintiffs attempt to obscure the issue of their bad faith in this case by

accusing Wyeth of contacting Martinez’s expert, Dr. Falterman, in violation of an

agreement in another case between Wyeth and plaintiffs’ counsel that Wyeth would not

directly contact another plaintiff’s experts. See Response at 5. In addition to being

wholly irrelevant to the issue under consideration here, this argument is frivolous.

Plaintiffs have neglected to inform the Court that, due to their own failure to identify their

experts, Wyeth was unaware of the fact that Dr. Falterman was one of plaintiffs’ experts

when it originally contacted him.5

 Plaintiffs also neglect to inform the Court that the

agreement Wyeth allegedly breached was made in a different case in Louisiana state

court, and not in this case. See Exhibit 2, July 28, 2003 Letter from David Neslin to

Buffy Martines memorializing agreement in Gatlin v. Wyeth. Moreover, any contact

between Wyeth and Dr. Falterman cannot alter the fact that, as explained in Wyeth’s

 

5

 Because plaintiffs had not informed it otherwise, Wyeth believed that Dr. Falterman was merely one

Martinez’s treating physicians, and that there was accordingly no prohibition against direct contact for

purposes of scheduling a deposition and collecting medical records.

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Memorandum, plaintiffs’ counsel are well aware of this Court’s deadlines and have

chosen to ignore them, thus demonstrating bad faith. See Memorandum at 7.

Because plaintiffs here, as in Sheppard, failed to timely submit their expert

reports, and because the same factors as in Sheppard favor exclusion here, this Court

should follow its decision in Sheppard and strike plaintiffs’ experts.6

 

6

 Because Perez has now designated an expert, Wyeth respectfully requests that its motion to bar her from

designating an expert be treated as a motion to strike her expert.

Case 2:02-cv-20142-HB Document 8 Filed 02/23/2004 Page 8 of 10
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CONCLUSION

For the reasons set forth above, as well as the reasons set forth in Wyeth’s Motion

to strike, Wyeth respectfully requests that the Court strike plaintiffs’ expert witnesses.

Respectfully submitted,

Peter L. Zimroth

Keri L. Howe

ARNOLD & PORTER

399 Park Avenue

New York, NY 10022

(212) 715-1010

David Neslin

Andrew Myers

ARNOLD & PORTER

370 Seventeenth Street

Suite 4500

Denver, Co 80202

"s"/Caroline A. Flotron 

Michael T. Scott

Paul B. Kerrigan

Caroline Flotron

REED SMITH LLP

2500 One Liberty Place

1650 Market Street

Philadelphia, PA 19103-7301

(215) 851-8248

Attorneys for Defendant Wyeth

Dated: February 23, 2004

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PHLLIB-0670875.01-CAFLOTRO

February 23, 2004 10:06 AM

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of Wyeth’s Reply to Plaintiffs' Response to

Wyeth's Motion to Strike Plaintiffs Marilyn Melder's and Peggy Martinez's Expert Witnesses and to Bar Plaintiff

Tefferny Perez from Designating an Expert was served this 23rd day of February, 2004, by overnight mail upon the

following:

Robert G. Harvey, Sr., Esq.,

Harvey Jacobson & Glago, APLC

2609 Canal Street, Fifth Floor

New Orleans, LA 70119

Richard N. Laminack, Esq.

Buffy Martines

O'Quinn, Laminack & Pirtle

440 Louisiana, Suite 2400

Houston, TX 77002

Darleen Jacobs, Esq. Jacobs & Sarrat

823 St. Louis Street

New Orleans, LA 70112

Susan Earnest, Esq.

Diet Drugs Litigation

2752 Canal Street

New Orleans, LA 70119

and upon all others required to be served in accordance with PTO No. 19, by first class mail postage prepaid.

"s"/Caroline A. Flotron 

Caroline A. Flotron

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